Smoking guns, dark secrets aplenty in YouTube-Viacom filings

It can't be good news for YouTube's $1 billion copyright infringement lawsuit …

Court documents in the $1 billion lawsuit between Viacom and YouTube were unsealed today, finally shedding some light on key questions: did Viacom have "smoking gun" evidence that YouTube was deliberately profiting from 62,637 Viacom clips that were watched more than 507 million times on the site? Was Google aware of the copyright infringement problems when it purchased YouTube in 2006? Were YouTube's own founders involved in uploading unauthorized materials?

On all three counts, Viacom says yes—and it offers up a host of e-mails to prove it:

"In a July 19, 2005 e-mail to YouTube co-founders Chad Hurley and Jawed Karim, YouTube co-founder Steve Chen wrote: 'jawed, please stop putting stolen videos on the site. We’re going to have a tough time defending the fact that we’re not liable for the copyrighted material on the site because we didn’t put it up when one of the co-founders is blatantly stealing content from other sites and trying to get everyone to see it.'"

"Chen twice wrote that 80 percent of user traffic depended on pirated videos. He opposed removing infringing videos on the ground that 'if you remove the potential copyright infringements... site traffic and virality will drop to maybe 20 percent of what it is.' Karim proposed they 'just remove the obviously copyright infringing stuff.' But Chen again insisted that even if they removed only such obviously infringing clips, site traffic would drop at least 80 percent. ('if [we] remove all that content[,] we go from 100,000 views a day down to about 20,000 views or maybe even lower')."

"In response to YouTube co-founder Chad Hurley’s August 9, 2005 e-mail, YouTube co-founder Steve Chen stated: 'but we should just keep that stuff on the site. I really don’t see what will happen. what? someone from cnn sees it? he happens to be someone with power? he happens to want to take it down right away. he get in touch with cnn legal. 2 weeks later, we get a cease & desist letter. we take the video down.'"

"A true smoking gun is a memorandum personally distributed by founder Karim to YouTube’s entire board of directors at a March 22, 2006 board meeting. Its words are pointed, powerful, and unambiguous. Karim told the YouTube board point-blank:
'As of today episodes and clips of the following well-known shows can still be found: Family Guy, South Park, MTV Cribs, Daily Show, Reno 911, Dave Chapelle. This content is an easy target for critics who claim that copyrighted content is entirely responsible for YouTube’s popularity. Although YouTube is not legally required to monitor content (as we have explained in the press) and complies with DMCA takedown requests, we would benefit from preemptively removing content that is blatantly illegal and likely to attract criticism.'"

"A month later, [YouTube manager Maryrose] Dunton told another senior YouTube employee in an instant message that 'the truth of the matter is probably 75-80 percent of our views come from copyrighted material.' She agreed with the other employee that YouTube has some 'good original content' but 'it’s just such a small percentage.'"

"In a September 1, 2005 email to YouTube co-founder Steve Chen and all YouTube employees, YouTube co-founder Jawed Karim stated, 'well, we SHOULD take down any: 1) movies 2) TV shows. we should KEEP: 1) news clips 2) comedy clips (Conan, Leno, etc) 3) music videos. In the future, I’d also reject these last three but not yet.'"

The limits of the DMCA

The basic argument here is a simple one. YouTube's founders hoped to build a massive user base as quickly as possible and then sell the site. "Our dirty little secret... is that we actually just want to sell out quickly," said Karim at one point. In an e-mail, Chen talked about “concentrat[ing] all of our efforts in building up our numbers as aggressively as we can through whatever tactics, however evil.”

As the e-mails collected in this suit make clear, numerous YouTube employees had direct knowledge of infringing material on the site, and in fact even altered tools like the community "flagging" feature so as to purposely find out about fewer incidents.

The strategy worked. One-and-one-half years after launching, Google purchased YouTube and made all of the founders incredibly wealthy. Given the obvious appeal of unauthorized content on YouTube, Viacom argues that the startup's strategy was, at its core, a decision to profit from copyright infringement. It doesn't matter whether YouTube showed ads on its video pages or not (for years, it did not, apparently concerned about just this issue); to Viacom, the entire business strategy was a way of profiting from infringement.

That's important because the Digital Millennium Copyright Act protects service providers that engage in "storage at the direction of the user." It has been a huge boon to user-generated content sites, and it is YouTube's key defense. But the DMCA puts limits on the generous safe harbors it provides: operators cannot have actual knowledge of infringement, they must take down infringing materials when asked, and they cannot profit from the infringement.

In the very first sentence of the summary judgment motion, Viacom makes clear it will attack YouTube's safe harbor protection head-on: "Plaintiffs Viacom International Inc. et al. (“Viacom”) move for partial summary judgment on Defendants’ liability for copyright infringement and concurrently to invalidate Defendants’ reliance on the Digital Millennium Copyright Act (“DMCA”) as a defense to that infringement."

Viacom argues that YouTube did know about infringement on the site, and not just in a general, "surely there's some infringement going on here" sort of way. No, as the e-mails collected in this suit make clear, numerous YouTube employees had direct knowledge of infringing material on the site, and in fact even altered tools like the community "flagging" feature so as to purposely find out about fewer incidents.

Under this argument, YouTube is like Grokster, the P2P site whose case went all the way to the Supreme Court and resulted in a seminal ruling that shut down the site on the grounds that the huge majority of its activity produced infringement.

But there's a second argument. Viacom also claims that YouTube is not covered by the law for a more fundamental reason: it is not engaged in "storage," as a file locker might be, but is in the business of displaying and broadcasting content, which also includes making numerous back-end copies. This behavior involves YouTube in "direct infringement of copyrights."

This appears to be the weakest part of Viacom's case, and it's unclear why the company would bother making it in the wake of a federal court's recent Veoh ruling. That decision noted (correctly, in our view) that automated back-end processes to cache or transcode or display a video did not involve the site operator in such direct infringement.

84 Reader Comments

This sounds like a gigantic headache. If Viacom can't keep their own list of legitimate uses straight, and google can't be reasonably expected to keep track of individual violations in the tens or hundreds of thousands, or whatnot.. how is this enforceable?

man this case is one big custerfuck, there's no "right" or "wrong" side. it seemed that youtube and viacom was going shady things in hopes to make money. though if i was a judge i'll probably side with youtube since viacom was secretly uploading clips to the website and can't help but believe that the only reason why viacom is suing youtube is because google has the cash to pay a settlement.

Google's argument is a lot more convincing than I thought it would be. Basically, my feeling is that if Viacom did actually use Youtube as google argues, /especially/ if they were uploading in secret, then of course Google had no option but to only take down content as they received DMCA notices. Viacom needs to be more prudent and more careful with their content.

How would YouTube know of infringment without being told by the copyright holder?

this is so passive aggressive... youtube knew what was going on. how else did they come up with the 80% figure cited in their own internal emails? how else did they come up with a plan for which kinds of content they would take down?

How would YouTube know of infringment without being told by the copyright holder?

this is so passive aggressive... youtube knew what was going on. how else did they come up with the 80% figure cited in their own internal emails? how else did they come up with a plan for which kinds of content they would take down?

Did you read the article? The point Google made was that Viacom was uploading its own content, then requesting to take down the content, then realizing that it was content it uploaded and canceling the request. So how could Google know that Viacom, who was uploading from unofficial accounts, wasn' t the uploader of a given video?

Note to self: If I ever start a company who's plan includes profiting off of copyrighted content, don't discuss it over email. Or as Stringer Bell says to his lackey at the coop meetings in The Wire: "What you doin', takin notes on a criminal f**king conspiracy?!".

As copyright owners, Viacom has the right to decide how its content is used. Google has to take it down if its found to be posted illegally, and then put it back up when Viacom fixes its own fuckups. "Live with it", its the best system we have. And, if youtube has advertising then its commercial. If the video was illegal and Viacom told youtube to take it down and it didn't come down then Google gets to pay. When someone downloads music for personal use with no commercial intent, it has a totally different infringement basis. For youtube in this; they get to pay top dollar when they were wrong. Pay a fine, get it over with. Of course, Google probably wants to use the lawsuit to end-run the worlds copyrights again, like it is doing with books. So, triple the damages.

Different story if Viacom deliberately made the videos too look like it's infringed material and upload them. They are delieberately putting down a smokescreen to effectively protect infringed material in such a way that it would leave YouTube in a vunerable position.YouTube also can't just take down videos willy nilly because their entire business model depends on people uploading video. Let's say a company uploads a video that uses their own copyrighted content to promote their product and YouTube suddenly shuts it down. The uploading company would be annoyed to say the least.

If I were the judge, I'd fine the founders of youtube the full amount that they received when bought from google, and then have google pay the infringement amount that viacom is seeking to a nonprofit.

Then all three of the partys, which are guilty get a giant whack on the hand for their bad acting, and none of them gains anything additional.

The lack of critical reading skills from commentors is disturbing...These emails aren't even close to smoking guns, even if you take them strictly at face value, and Viacom's case is completely muddled.

- Those emails are from YouTube's founders, not Google's. (Read more carefully, arcadium)

- Profiting off of copyrighted content is not illegal (I'm looking at you Joystickit). It's only criminal if that content is not authorized, and you are only personally liable if you know that it's not authorized (assumptions don't count as knowing, by the way) and don't do anything about it.

- Google cannot review each submission manually, and doesn't even know what all of the content on Youtube is, let alone know which individual ones are infringing. Knowing that content is potentially infringing does not mean that it actually is. (This one's for you, patSPLAT).

So, just to summarize for everyone who can't figure it out: 1) No, Google cannot tell which videos are infringing. 2) Google takes down every video they've received notices for. 3) I thought YouTube wasn't generating profit? In other words: DMCA safeharbours apply, Google is not guilty of anything.

The lack of critical reading skills from commentors is disturbing...These emails aren't even close to smoking guns, even if you take them strictly at face value, and Viacom's case is completely muddled.

- Those emails are from YouTube's founders, not Google's. (Read more carefully, arcadium)

- Profiting off of copyrighted content is not illegal (I'm looking at you Joystickit). It's only criminal if that content is not authorized, and you are only personally liable if you know that it's not authorized (assumptions don't count as knowing, by the way) and don't do anything about it.

- Google cannot review each submission manually, and doesn't even know what all of the content on Youtube is, let alone know which individual ones are infringing. Knowing that content is potentially infringing does not mean that it actually is. (This one's for you, patSPLAT).

So, just to summarize for everyone who can't figure it out: 1) No, Google cannot tell which videos are infringing. 2) Google takes down every video they've received notices for. 3) I thought YouTube wasn't generating profit? In other words: DMCA safeharbours apply, Google is not guilty of anything.

I'm just posting this comment again since WolfintheSheep basicly won the thread.

WolfintheSheep you are wrong in your assumptions. When Google purchased YouTube is should have been part of their due diligence to make sure they weren't getting involved with a company that was engadged in illegal activities. This is at the heart of the issue for Viacom. I am not a lawyer and don't claim to know all the ins and outs of this case but Google/YouTube does appear to be in violation of Viacom's copyrights and willfully at that. Viacom seems to be involved in some asshatery of their own here but that doesn't get YouTube completely off the hook.

WolfintheSheep, I think you're being naive. "Critical reading skills" or no, the law is not stupid. You are citing legal provisions intended to protect organizations that incidentally enable or profit from infringement. That's like if someone tried to sue the phone company because people were playing copyrighted music over the phone. That's not what's happening here. This is a case of deliberately profiting from infringement, and basing your entire business model around it. That's illegal, and it's been reinforced by the Napster and Pirate Bay decisions.

The saving grace for YouTube was that it wasn't intended to be a pirate hub. It was supposedly just a place to upload videos of yourself, and the fact that pirated videos went up was just an occupational hazard. Now it comes out that no, it was all about piracy to begin with, and that changes the context completely.

I hope the courts keep this financial, and don't issue any injunctions, because if YouTube goes away, we lose an extremely valuable resource. The fact that Google cleaned it up after taking over will hopefully keep that from happening.

I'm amazed that corporate behemoths like Viacom just automatically assume that everyone wants their precious, precious content, and that 80 percent of YouTube was from those evil, dastardly "pirates".

This ignores the history of YouTube completely. YouTube gained popularity with silly little videos that became Internet memes, like the dramatic hamster, or the Numa Numa guy. Then people started uploading longer, more serious pieces. The amount of content exploded as people started uploading anything they could think of.

I think this is going to suck. WolfintheSheep, I think you're being naive. "Critical reading skills" or no, the law is not stupid. You are citing legal provisions intended to protect organizations that incidentally enable or profit from infringement. That's like if someone tried to sue the phone company because people were playing copyrighted music over the phone. That's not what's happening here. This is a case of deliberately profiting from infringement, and basing your entire business model around it. That's illegal, and it's been reinforced by the Napster and Pirate Bay decisions. The saving grace for YouTube was that it wasn't intended to be a pirate hub. It was supposedly just a place to upload videos of yourself, and the fact that pirated videos went up was just an occupational hazard. Now it comes out that no, it was all about piracy to begin with, and that changes the context completely. I hope the courts keep this financial, and don't issue any injunctions, because if YouTube goes away, we lose an extremely valuable resource. The fact that Google cleaned it up after taking over will hopefully keep that from happening.

Looks like dastardly actions on the part of the guys who originally owned youtube.

Google certainly cleaned up the site to a much greater extent than I would've imagined possible without ruining it (turning it into the equivalent of cable TV - a place only Viacom and the like can do business).

I have no sympathy whatsoever for the arguments of anyone defending Viacom. What Google said speaks for itself.

WolfintheSheep, I think you're being naive. "Critical reading skills" or no, the law is not stupid. You are citing legal provisions intended to protect organizations that incidentally enable or profit from infringement. That's like if someone tried to sue the phone company because people were playing copyrighted music over the phone. That's not what's happening here. This is a case of deliberately profiting from infringement, and basing your entire business model around it. That's illegal, and it's been reinforced by the Napster and Pirate Bay decisions.

1) The emails say nothing about "deliberately profiting from infringement". Ignoring Viacom's BS, all you have is the YouTube founders saying "keep it there until we're told to take it down", which is what the DMCA says is required. Not one of the email says anything about keeping infringing material up. Many talk about "criticism" about copyrighted work, but once again, they all talk about potentially infringing content, not confirmed infringement.

2) None of this applies to Google, so it's all completely moot. Google is not liable for what previous owners of a company did, and should not be.

1) The emails say nothing about "deliberately profiting from infringement". Ignoring Viacom's BS, all you have is the YouTube founders saying "keep it there until we're told to take it down", which is what the DMCA says is required. Not one of the email says anything about keeping infringing material up. Many talk about "criticism" about copyrighted work, but once again, they all talk about potentially infringing content, not confirmed infringement.

Not so fast...

Quote:

YouTube co-founder Jawed Karim stated, 'well, we SHOULD take down any: 1) movies 2) TV shows. we should KEEP: 1) news clips 2) comedy clips (Conan, Leno, etc) 3) music videos. In the future, I’d also reject these last three but not yet.'

They know they do not have permission for the news, comedy, and music clips. You might say it's still only potentially infringing, but then so are the movies and TV shows, and they feel the legal need to take them down. Even if *none* of the content was infringing (i.e. it was uploaded by the copyright holders) it still shows the state of mind of the founders, and that's all Viacom is trying to prove here.

WolfintheSheep wrote:

2) None of this applies to Google, so it's all completely moot. Google is not liable for what previous owners of a company did, and should not be.

That's almost certainly wrong, but depends largely on the way Google and YouTube are organized, which is not something you or I have access to. When a corporation or individual purchases, and effectively owns, a company, they become legally responsible for the actions of that company. Like another poster said, Google has to perform due diligence to make sure they're not purchasing an illegally-run company. Failure to perform due diligence is no defense.

The lack of critical reading skills from commentors is disturbing...These emails aren't even close to smoking guns, even if you take them strictly at face value, and Viacom's case is completely muddled.

YouTube. It's about YouTube. YouTube didn't respond to DMCA takedowns, It's discussed at the start of the article. The part about YouTube ... the company this is about, and how they got as big as they did.

The lawsuit isn't because Google is highly effective at DMCA takedowns and tossups. It's about YouTube, and advertising of illegal content, and about YouTube building up its business in order to sell it.

Maybe you read the story on John Timmers War on Cancer instead by mistake?:P

How would YouTube know of infringment without being told by the copyright holder?

this is so passive aggressive... youtube knew what was going on. how else did they come up with the 80% figure cited in their own internal emails? how else did they come up with a plan for which kinds of content they would take down?

Did you read the article? The point Google made was that Viacom was uploading its own content, then requesting to take down the content, then realizing that it was content it uploaded and canceling the request. So how could Google know that Viacom, who was uploading from unofficial accounts, wasn' t the uploader of a given video?

The sequence of events is:

1. youtube uses copyright infringement purposefully to become the #1 video site online2. after becoming the #1 video site online, content providers put their content on youtube because that's where the audience is3. as the #1 video site, google sets the terms for compensation to the content providers.

Point is step 1 was illegal. The mess that google is complaining about managing didn't happen until step 2. And at step 3, content providers got sick of the whole thing and lawyered up.

Purposefully engineering a system where the posting of infringing materials takes 5 minutes and the removal of such materials takes 2 weeks, while profiting on the sale of first the company and later advertising, is *NOT* innocent behavior.

The lack of critical reading skills from commentors is disturbing...These emails aren't even close to smoking guns, even if you take them strictly at face value, and Viacom's case is completely muddled.

- Those emails are from YouTube's founders, not Google's. (Read more carefully, arcadium)

- Profiting off of copyrighted content is not illegal (I'm looking at you Joystickit). It's only criminal if that content is not authorized, and you are only personally liable if you know that it's not authorized (assumptions don't count as knowing, by the way) and don't do anything about it.

- Google cannot review each submission manually, and doesn't even know what all of the content on Youtube is, let alone know which individual ones are infringing. Knowing that content is potentially infringing does not mean that it actually is. (This one's for you, patSPLAT).

So, just to summarize for everyone who can't figure it out: 1) No, Google cannot tell which videos are infringing. 2) Google takes down every video they've received notices for. 3) I thought YouTube wasn't generating profit? In other words: DMCA safeharbours apply, Google is not guilty of anything.

Here's a summary for you:

1.) Google can indeed tell which videos are copyrighted content. They can actually automatically identify copyrighted content, and have built a business around (the mentioned Content ID from the article).

2.) Google inherited the liability from Youtube when they bought the company. And just because you stopped breaking the law doesn't mean you aren't liable for your past actions.

This is what I was thinking. If all of Viacom's evidence is from YouTube's founders, then why not sue them? They're the ones who actually profited. If anything, Google got suckered into paying too much and having to invest resources into the "virtual fingerprinting" technology that automatically prevents the upload of unauthorized clips.

Purposefully engineering a system where the posting of infringing materials takes 5 minutes and the removal of such materials takes 2 weeks, while profiting on the sale of first the company and later advertising, is *NOT* innocent behavior.

Don't get ahead of yourself. YouTube as it stands today is innocent -- it is trying to comply with the law. Viacom is saying they got there on the shoulders of willful infringement.

The reality is that it's five minutes to upload copyright content (note that *all* uploaded content is copyrighted), but it takes much longer to determine whether something is infringing (i.e. copyrighted *and* uploaded without permission). The latter is what takes two weeks, because the copyright holder has to get a lawyer to draft a letter compliant with the DMCA, send it to YouTube, and have the video removed.

1.) Google can indeed tell which videos are copyrighted content. They can actually automatically identify copyrighted content, and have built a business around (the mentioned Content ID from the article).

Naturally, because all uploaded content is copyrighted by someone. But can they use technology to determine that the *origin* of the content has permission to upload it? No.

Quote:

2.) Google inherited the liability from Youtube when they bought the company. And just because you stopped breaking the law doesn't mean you aren't liable for your past actions.

Contracts can relieve the purchasing company from liability for past actions, it depends on how things are set up between Google and YouTube. Parent corporations can also be set up to have no liability for the actions of their subsumed corporations.

Yes, they did, so the question isn't "did they profit" the question is "did they knowingly infringe on the rights of copyright holders"? That question is not so clear, because it's obvious that companies like Viacom were uploading content from non-identifiable machines, which action (regardless of where you do it from) grants YouTube permission to host the content.